Opinion
January Term, 1902.
Writ of certiorari dismissed, without costs.
The writ of certiorari was granted upon the ground that the relator was a veteran of the Civil War, and, as such, irremovable. But he has not brought himself within the requirements of the recent decision of this court in People ex rel. Dixon v. Simonson ( 64 App. Div, 312, 315) with respect to service in the Confederate army and navy. It appears that he voluntarily, although informally, relinquished the office of chief of police and became a member of the force in the ranks, subject to all the obligations incident to that position. He was assigned for a time to duty at the Recorder's Court at his own request, but he had no right to permanent occupation there either by law or under any valid agreement. When ordered to do patrol duty he refused, as he admits, and after a trial was dismissed from the force by the board of police for insubordination, under the authority conferred by the city charter. (Laws of 1896, chap. 425, § 141, subd. 8.) The trial and dismissal occurred on the 11th day of May, 1900. By chapter 659 of the Laws of 1900, which took effect April twenty-fifth of that year, the term of office of the commissioners constituting the board by which he was tried was made to expire on April 30, 1900, and the point is made that they were without jurisdiction. But the act of 1900 does not appear to amend section 17 of the charter, which provides that every officer shall hold over until his successor shall be chosen and qualify, and the acting board remained in office pursuant to that section. Moreover, the relator in his petition asserts that the successors to the commissioners by whom he was removed were not appointed until on or about May 12, 1900, and states that such commissioners constituted on May 11, 1900, "the then police board of the city of Poughkeepsie." The return is defective in not setting forth the terms of section 7 of the rules which the relator was charged with violating, but it clearly appears that he was regularly assigned to patrol duty by resolution of the board, and that he willfully refused to submit to the authority or to obey the direction. The power to require him to perform such duty is incident to the powers conferred upon the board by the express terms of the charter and to the subordinate position which he then occupied, and his dismissal from the force was essential to efficiency and the maintenance of discipline. It follows that, independently of the relator's status as a veteran, the removal was for cause, after a fair trial, and the writ should be dismissed. All concurred.